South America Eyes Legal Reforms

Democratic regimes take steps to update their judicial systems

ByJulia Michaels, Special to The Christian Science MonitorMarch 24, 1992

SAO PAULO, BRAZIL
— SEVENTEEN years ago, Brazil's federal highways agency published a notice in a local newspaper announcing that it would expropriate a piece of land from the family of Margarida Barbosa de Oliveira to widen a road. The notice included the price the agency would pay the family. Mrs. Barbosa's husband, a lawyer, didn't think the price was what the land was really worth, and he went to court to get full recompense. Even so, the tractors were on their land only days after the notice appeared.

Today, Mrs. Barbosa is a widow. The government long ago agreed to pay a fairer price, but she has yet to receive the money. The government says it doesn't have the funds and has taken years, on several occasions, to calculate what it owes, adjusted for Brazil's high inflation.

"I'll probably die without seeing the end of the story," Barbosa, age 76, says angrily. "You don't do this to anyone, not to a [poor person] and not to a person who pays his taxes. When an individual doesn't have the funds he owes someone, he goes to jail. But not the government."

Stories of injustices like this, and much worse, abound in Latin America. More than two thirds of the people in the region's prisons are merely awaiting trial, according to Gail Lecce, adviser on the administration of justice for the Latin American Bureau of the United States Agency for International Development (USAID).

The judicial branch of government in Latin America has long been stunted by authoritarian regimes more interested in keeping order than in abiding by the decisions of an impartial and autonomous institution open to all citizens, say social scientists.

But as many countries have turned to democratic regimes in the last decade, citizens have begun to focus on the judiciary.

"There's more emphasis on the protection of individual rights and due process throughout Latin America," says Ms. Lecce, who is based in Washington, D.C.

USAID has been tracking justice in the region for a decade, focusing mostly on human rights. But the agency has begun to widen that focus, as many countries begin moving beyond rights issues to everyday legal concerns. Chile, Argentina, and Brazil - countries known as the southern cone - form one area where activity is growing.

In Chile last year, the executive branch presented a bill for judicial reform, which is now under congressional consideration. In Brazil, the attorney general's office has become more active in rural-violence investigations, has repeatedly challenged President Fernando Collor de Mello's economic reforms, and is working on its own judicial reform package.

In Argentina, President Carlos Saul Menem has increased the number of supreme court justices from five to nine. He plans to change from a written to a more oral system of presenting and judging cases this September.

"Now we are relatively close to substantial modifications in the penal system," says Horacio Lynch, president of the executive committee of a nonprofit Argentine interest group founded in 1976, the Forum of Studies on the Administration of Justice (FORES).

Part of the problem is that many judiciaries have stuck with inefficient processes dating back to Spanish and Portuguese colonial times, even though the colonizers themselves have already updated their systems. Until recently in Argentina, for example, all cases were handled exclusively in written form, creating mountains of paperwork. And in Chile, where many cases are also handled in written form, the records are not open to all sides and sometimes one person is both the government prosecutor and the j udge, says Carlos Lopez Dawson, general secretary of the Chilean Chapter of the Ombudsman.

The reach of the courts has also not kept up with population growth; judges are young, undereducated, and inexperienced in many countries, and corruption has become a huge problem as a result of low salaries and ineffective checks on judicial behavior, Mr. Lynch says.

Despite growing interest and popular support for reform, much opposition remains. Chile's supreme court president Enrique Correa Labra recently attacked the government's reform bill, which would create a new agency to appoint judges (with Senate approval in the case of supreme court justices) and monitor their behavior.

CHILEAN human-rights activists say the bill is necessary because the supreme court failed to uphold citizens' rights during the 1973 to 1990 military regime of Gen. Augusto Pinochet Ugarte, but Dr. Correa maintains that the court did carry out its role as prescribed by law.

Reform also means developing new skills. Going from written to oral presentations in Argentina, says Mr. Lynch, "is a very radical change in our customs. More intense activity is required during a case, and this is quite a burden; the judges need to be prepared [for this].... We need more judges, and we need to train them and work with [lawyers]."

In many countries, the reformers hope to make the system more accessible to would-be plaintiffs. Several years ago, Brazil set up a system of small-claims courts to remove some of the heavy workload from the existing court system. But many individuals are still not aware that this is an alternative for solving disputes.

Some Argentines would like to adopt a similar system and establish other alternatives, such as judicial arbitration and mediation. "Decongesting is the most important thing," says Lynch, whose group is preparing a report on the local judiciary for a foundation sponsored by the Bank of Boston. In Chile, some judges handle as many as 30,000 active cases.

The US judiciary has often been an example in the region. FORES is working closely with USAID's Uruguay office, as part of the agency's Administration of Justice Program that reaches 17 Latin American countries. "The program is aimed at improving the independence, efficiency, and accessibility to the court system in Latin American countries, working with the court system as well as with private organizations interested in improving the justice system," says Lecce.

Two years ago, FORES president Lynch saw a Cable News Network (CNN) broadcast of US Senate proceedings on the case of a federal judge accused of taking bribes. He was impressed with the American system of judging judges. "It's hard to bring Congress to a halt to judge a judge, so the [US] Senate created a smaller forum for the initial proceedings," he recalls.

Europe has also provided inspiration. In 1985, some Chileans organized a group to lobby for the creation of an ombudsman as part of the judicial system.

"The object is to intermediate between the courts and the people. This exists in 109 countries, such as the Scandinavian countries, Great Britain, France, and some US states," says Carlos Lopez Dawson, general secretary of the group, which is called the Chilean Chapter of the Ombudsman. The chapter hopes to help draft an ombudsman bill after Chile's congress approves general judicial reform, which is expected to happen by May.